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Obama Plans 3 Nominations for Key Court

WASHINGTON — President Obama will soon accelerate his efforts to put a lasting imprint on the country’s judiciary by simultaneously nominating three judges to an important federal court, a move that is certain to unleash fierce Republican opposition and could rekindle a broader partisan struggle over Senate rules.

In trying to fill the three vacancies on the 11-member United States Court of Appeals for the District of Columbia Circuit at once, Mr. Obama will be adopting a more aggressive nomination strategy. He will effectively be daring Republicans to find specific ground to filibuster all the nominees.

White House officials declined to say who Mr. Obama’s choices will be ahead of an announcement that could come this week, but leading contenders for the spots appear to include Cornelia T. L. Pillard, a law professor at the Georgetown University Law Center; David C. Frederick, who often represents consumers and investors at the Supreme Court; and Patricia Ann Millett, a veteran appeals lawyer in Washington. All three are experienced lawyers who would be unlikely to generate controversy individually.

Several legal advocates who have been in communication with the West Wing said officials had repeatedly discussed those names in recent months.

Often called the second most important court in the country, the Washington court has overturned major parts of the president’s agenda in the last four years, on regulations covering Wall Street, the environment, tobacco, labor unions and workers’ rights.

With the confirmation last week of Sri Srinivasan, Mr. Obama’s first successful nominee to the court, it now has four Democratic appointees and four Republican appointees. But of the six additional “senior” judges, who previously served full time on the court and still regularly hear cases, five were appointed by a Republican president, giving the court a strongly conservative flavor.

“The court is critically important — the majority has made decisions that have frustrated the president’s agenda,” said Nan Aron, a liberal activist who has called for Mr. Obama to be more aggressive in nominating judges. “Our view is that balance must be restored on that court, and the empty seats must be filled.”

Senator Harry Reid of Nevada, the majority leader, said last week that the court’s rulings were “wreaking havoc” on the country.

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Sri Srinivasan, shown at his Senate confirmation hearing last month, was President Obama’s first successful nominee to the federal appeals court in Washington. Three seats remain open.Credit
Doug Mills/The New York Times

Republicans in Congress are already preparing to do battle. Having approved Judge Srinivasan this month, Republican senators are pushing a proposal to eliminate the three empty slots from the court by shifting them to circuits in other parts of the country.

If that strategy, which Democrats have compared to President Franklin D. Roosevelt’s failed attempt to change the size of the Supreme Court, does not work, Republicans could filibuster Mr. Obama’s nominees to prevent them from joining the court. Republicans currently hold 45 of the Senate’s 100 seats, and 41 are needed for a filibuster.

“The whole purpose here is to stack the court,” Senator Mitch McConnell of Kentucky, the Republican leader, said of Democratic efforts to fill the court’s vacancies.

Mr. Obama’s decision to make the nominations all at once is part of a broader strategy by Democrats to shine a spotlight on what they say is Republican obstruction in the Senate.

Democrats cite the case of Caitlin J. Halligan, a former New York State solicitor general, whom Mr. Obama twice nominated to fill one of the vacancies on the Washington circuit court. Republicans filibustered her nomination both times.

Republicans deny that they are obstructing the president’s nominees and say Mr. Obama’s picks are being confirmed more quickly than were President George W. Bush’s nominees when Democrats controlled the Senate. Republicans recall the case of Miguel Estrada, a lawyer nominated to the Washington circuit court in 2001. Democrats blocked his nomination with a filibuster.

Senator Charles E. Grassley, Republican of Iowa, said the Democratic accusations are “nonsense.”

“This is part of the majority’s attempt to create the appearance of obstruction where none exists,” Mr. Grassley said last week in a speech on the floor of the Senate. “It is a transparent attempt to manufacture a crisis.”

Democrats say Republicans in the Senate have violated long-standing traditions by routinely requiring 60 votes to approve even the most uncontroversial legislation or nomination.

Democrats are preparing to escalate the dispute this summer by scheduling numerous confirmation votes in a short period of time. If, as Democrats expect, Republicans block those nominations, Mr. Obama and his allies hope the public will notice.

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Senator Mitch McConnell, the minority leader, said Democrats were trying to “stack the court.”Credit
Drew Angerer for The New York Times

With enough public pressure, some Democrats hope that they could change the Senate rules to prohibit filibusters on judicial nominations and in some other areas.

“A single blocked nomination may not generate much publicity, but by blocking so many nominees at once, the Republicans are overplaying their hand,” Senator Charles E. Schumer, Democrat of New York, told reporters on Thursday. “The other side must be careful. If they think they can win a debate over whether the Senate should change its rules, they might very well be mistaken.”

In the meantime, the Washington circuit court continues to churn out decisions, some of which are undermining the president’s hard-fought legislative and executive agenda.

In one case in 2011, a three-judge panel of the court — randomly chosen from among the full-time and senior judges, as is typical — struck down an important Wall Street regulation. The regulation, part of the banking legislation that was championed by Mr. Obama after the economic collapse in 2008 and passed by Congress, would have made it easier for shareholders to propose their own nominees to corporate boards of directors.

A similar panel last year struck down efforts by the Environmental Protection Agency to regulate air pollution across state lines. A third panel ruled in January that Mr. Obama could not make recess appointments to the National Labor Relations Board in the face of Republican efforts to block his picks.

Democrats say the confirmation of Mr. Obama’s likely nominees would make it more conceivable that the president’s agenda would get a fair hearing.

Ms. Pillard has worked at the American Civil Liberties Union and the NAACP Legal Defense and Education Fund. She has argued nine cases before the Supreme Court, including Nevada Department of Human Resources v. Hibbs in 2003, in which, to the surprise of many, she persuaded a court that had been protective of states’ rights to allow suits against states under the Family and Medical Leave Act.

Mr. Frederick served as a law clerk to Justice Byron R. White and worked in the Justice Department, spending five years in the solicitor general’s office. He has argued more than 40 cases before the Supreme Court.

Ms. Millett served in the solicitor general’s office for a decade and has argued 32 cases before the Supreme Court, most on behalf of the federal government. She now leads the appellate practice for one of Washington’s largest law firms.

Lawyers close to the administration said they did not know whether other candidates were also being considered.

Correction: May 30, 2013

Because of an editing error, an article on Tuesday about President Obama’s plans to nominate three candidates to the United States Court of Appeals for the District of Columbia overstated the number of cases that Patricia Ann Millett, one of the leading contenders, has argued before the Supreme Court on behalf of the federal government. While Ms. Millett, a veteran Washington lawyer, has argued 32 cases before the Supreme Court, only 25 — not all of them — were on behalf of the government.

Adam Liptak contributed reporting.

A version of this article appears in print on May 28, 2013, on page A1 of the New York edition with the headline: Obama Plans 3 Nominations For Key Court. Order Reprints|Today's Paper|Subscribe